On October 1, 2018, shortly after the D.C. federal district court refused the federal government’s request to transfer the lawsuits to the Utah federal court, the Department of Justice (DOJ) filed sweeping motions to dismiss the five pending complaints, three associated with Bears Ears and two with Grand Staircase. Among the plaintiffs were the coalition of Sovereign Tribes that spearheaded the monument designation of Bears Ears, local businesses, scientists, and environmental organizations. On November 15, the plaintiffs filed their briefs in opposition to the DOJ motions to dismiss.

On or about November 19, amicus briefs were filed by a diverse array of parties in support of the plaintiffs, including state Attorneys General, members of Congress, natural resources law professors, archaeological associations, Tribal organizations, outdoor user groups, and locally elected officials in Utah. The amicus briefs, if accepted by the court, would provide important context about the impact of monument designations on the resources being protected by those designations and on the user communities. On November 27, DOJ asked the court to deny all amicus briefs other than that filed by the Attorneys General, including the brief filed on behalf of 118 members of Congress. At the time this blog was finalized, the court has not yet ruled on the motion. DOJ filed its reply to the plaintiffs’ opposition briefs on December 13.

The core of the litigation is whether the President has the authority under the Antiquities Act to revoke or substantially modify a predecessor President’s monument designation. The Antiquities Act gives the President the authority to “declare” as national monuments landmarks, historic and pre-historic structures, and other objects of historic and scientific interest and to “reserve” parcels that are “confined to the smallest area compatible” with protection of the objects. All five groups of plaintiffs argue that Congress did not delegate the authority to revoke or modify monuments to the President. The federal government’s motion to dismiss is based in part on traditional arguments about the lack of standing and ripeness. DOJ also makes more sweeping arguments that go to the heart of the case, asserting that plaintiffs’ claims fail as a matter of law, with its brief pointing to legislative history, the text of the statute, actions by previous Presidents, and the lack of action by Congress. Plaintiffs argue each factor the other way.

One highly consequential point on which the parties differ starkly is the impact of monument designations and the practical consequences for resource protection that flow from the Presidential act. DOJ asserts that other federal law provides sufficient protection absent such designation, and that any potential harm from President Trumps’ “UN-designation” will only occur if future activities, subject to future process, are authorized. DOJ further argues that the President has an ongoing, affirmative obligation to shrink the designated area if he believes it is not “the smallest area compatible” with protection of the objects, a key statutory term, as noted above.

The plaintiffs offer a compelling view of the weaker legal protections, imminent threats, and uncertainty that monument objects would face if monument boundaries could be redrawn to exclude them. On this point, in particular, amicus supporters offer context and experience to support Plaintiffs’ position. For example, the brief submitted by 118 Democratic members of Congress explains that the authority Congress delegated to the President under the Antiquities Act was intended to be “one-way” and constituted a logical choice since risks to objects require quick protective action while the removal of protections is better suited to the legislative process retained by Congress. The natural resource law professors offer a detailed description of how the Antiquities Act works in combination with other resource management statutes, including the Mining Law of 1872. Absent the monument designation, this law permits a wide range of ground-disturbing activities on public lands with minimal or no notice and generally with no prior approval.

Similarly, the archaeologists’ brief provides detailed examples of recorded historic sites that are no longer subject to the protections offered by a monument designation, with about half (1,910) of the 4,000 documented sites located within the original boundaries of Grand Staircase no longer having monument protection and approximately 73% of documented archaeological sites having been removed from the Bears Ears monument. The brief filed by the National Congress of American Indians, the oldest and largest national organization of American Indian and Alaska Native tribal governments and their citizens, underscores the importance of the original Bears Ears designation to Native American history and culture and the harm associated with eliminating the Commission of Tribal Sovereigns which was established to ensure that the Tribes had enhanced participation opportunities in the long-term management of their heritage.

Communities and users dependent on monument designations, both in Utah and elsewhere, share how they rely on the monuments and have built systems and infrastructure around them based on an understanding of their permanence. The Attorneys General from Washington, California, Oregon, New Mexico, Hawaii, Maine, Maryland, Vermont, Rhode Island, and New York describe how states enter cooperative management agreements, provide investments in infrastructure, change state rules and regulations, conduct state university research and preservation within monuments, and promote economic and health benefits for citizens. The Mayor of Salt Lake City and other affected officials emphasize the importance and economic reliance of gateway communities on monument designations, as well as the failure of the Trump Administration to hear all the local voices in reaching its decision on the monuments. The Outdoor Alliance describes how the monument designation changes the management of these resources and therefore the user experience. The Outdoor Alliance also counters the government’s suggestion that the lands would be similarly protected without monument status.

I find these points and other arguments made by the plaintiffs and amici supporting the plaintiffs very persuasive as they illustrate the complex array of interests harmed by President Trump’s proclamation. The federal government and its supporters from the State of Utah and the Farm Bureau took the opportunity to present their views in the December 13 filing. That may be a topic for discussion in later blogs.

In 2015 a district court enjoined enforcement of an Endangered Species Act 4(d) rule on the ground the federal government lacked authority under the Commerce Clause to regulate the take of a purely intrastate species, the Utah Prairie Dog, on nonfederal land. The decision flew in the face of four prior court of appeals decisions in other circuits and attracted substantial commentary, including a blog post by a fellow member of ACOEL. In late March the Tenth Circuit unanimously reversed the district court decision. The Tenth Circuit’s opinion expressly embraced the prior decisions in the Fourth, Fifth, Ninth, and Eleventh Circuits that the district court had rejected.

Standing alone, the Tenth Circuit’s decision would be notable only for the fact that it restored Endangered Species Act case law to a more orthodox state of consensus. But four procedural details add interesting contextual background.

First, the Tenth Circuit took an unusually long time deciding the case. The court heard oral argument and took the appeal under submission on September 29, 2015. The court did not issue its decision until March 29, 2017, exactly eighteen months later. It is not apparent why the Tenth Circuit took so long to issue its opinion, but the length of the wait was definitely a source of nervous contemplation among the parties.

Second, Friends of Animals intervened as a party in the district court and participated vigorously throughout the trial court proceedings and appeal. At the time the Friends intervened, October of 2013, there was little reason to think the Fish & Wildlife Service would not vigorously defend its authority under the ESA. By the time the appeal was decided, however, the picture was different. The Trump administration had taken office, and there was significant doubt about its interest in vigorously defending the scope of Endangered Species Act jurisdiction. The presence of Friends of Animals as a party, and not merely as an amicus, assured there would be vigorous party opposition to the plaintiff’s petition for rehearing and potentially its petition for certiorari.

Third, after the Tenth Circuit’s opinion was issued and before the deadline for responding to the plaintiff’s petition for rehearing en banc, the Fish & Wildlife Service ordered an internal review of the 4(d) rule in dispute, to be completed in 120 days. The review is to consider, among other things, the effectiveness of the state’s Utah Prairie Dog Management Plan in protecting the species. The Service asked the court for a 135 day stay of proceedings to allow completion of the internal review before requiring any other action in the appeal. The Service argued the internal review could result in changes to the 4(d) rule that might render the plaintiff’s claims moot. The court denied the Service’s request for stay and subsequently denied the plaintiff’s petition for rehearing en banc.

The Service’s decision to initiate internal review of the 4(d) rule may wind up frustrating both the anti-ESA property rights advocates and the environmental groups. The Service’s statement that its internal review might moot the plaintiff’s claims will likely be advanced as a reason for denying any petition for certiorari the plaintiff may file. And the Service’s explicit focus on examining the effectiveness of the state’s Utah Prairie Dog Management Plan may foreshadow an inclination on the part of the new administration to reduce federal protection of the species despite the success in beating back the assault on ESA jurisdiction.

American College of Environmental Lawyers, The ACOEL, is a professionalassociation of lawyers distinguished by experience and high standards in the practice of environmental law, ethics, and the development of environmental law.